Chapter 11

Trial process (Part 3 of the Act)

Witness anonymity

11.81There are two sets of provisions in the Act that allow witnesses to give evidence anonymously. A general regime allowing parties to apply to the court for a witness anonymity order is contained in ss 110–120 of the Act. Undercover police officers are subject to a separate regime in ss 108 and 109 of the Act whereby protection of identity is automatic on satisfaction of specified legislative criteria.

Introduction and background

11.82The genesis of New Zealand’s witness anonymity provisions can be traced back to Parliament’s responses to the Court of Appeal decisions R v Hughes and R v Hines in which the Court held that prosecution witnesses must disclose their true identity to the defence, in order to allow the defence to make inquiries about their credibility.871 The Government enacted ss 13A–13J of the Evidence Act 1908 to allow witnesses to give evidence anonymously.

11.83In the Law Commission’s subsequent report, it recommended that ss 13A–13J of the Evidence Act 1908 be reproduced in its proposed Evidence Code.872 These provisions were substantially imported as ss 108–120 of the Evidence Act 2006, with some cosmetic changes relating to the reordering and separation of some provisions.

11.84The Evidence Amendment Act 2011, which comes into force on 18 October 2013 (unless brought into force earlier by Order in Council), makes some amendments to ss 108–120 of the Act. These amendments are generally consequential to the criminal procedure amendments contained in the Criminal Procedure (Reform and Modernisation) Bill, from which the Evidence Amendment Act 2011 was divided. The details of these amendments are discussed further below.

Scope of police anonymity provisions

11.85Sections 108–109 of the Act provide for undercover police officers to give evidence without disclosing their true identity. They provide that:

The Police Commissioner may file a certificate as to the credibility of an undercover police officer who is to be called as a prosecution witness.

Once this certificate is filed, the undercover officer’s true name, address, and any particulars likely to enable someone to discover this name or address, are protected.

This protection prohibits any person in court from asking any witness a question about the true name or address of the undercover officer. It also prohibits anyone from stating the true name or address of the undercover officer in court, or making any other statement likely to enable someone to discover this name and address.

This prohibition is only lifted by leave of the Court. Leave will only be granted if there is some evidence that calls into question the undercover officer’s credibility.

This protection is only available for the following offences:

a) Offences with a maximum penalty of 7 years or more;b) All offences under the Misuse of Drugs Act 1975 other than offences against ss 7 and 13;c) An offence against section 98A of the Crimes Act 1961 (participation in an organised criminal group);d) Conspiracy to commit or attempting to commit an offence described in paragraphs (Offences with a maximum penalty of 7 years or more; and (All offences under the Misuse of Drugs Act 1975 other than offences against ss 7 and 13; above.

11.87The Evidence Amendment Act 2011 amends these provisions. The majority of the amendments are merely consequential on the new categorisation of offences under the Criminal Procedure Act 2011 (categories 1–4 replace the summary and indictable distinction). However, one amendment will change the threshold for Misuse of Drugs Act 1975 offences.874 This means there are a small number of offences in the Misuse of Drugs Act 1975 that meet the current threshold for the police identity protection provisions which will not meet the new threshold.

11.88The New Zealand Police, in its submission, asked us to consider extending the protection conferred by ss 108–109 to a broader range of offences. Two arguments have been put forward for this extension. First, there is concern that the general 7 year threshold excludes offences commonly detected by undercover police officers, such as most Arms Act 1983 offences, certain forms of assault, and other offences committed by organised criminal groups such as those under the Sale of Liquor Act 1989 and the Fisheries Act 1996.

11.89Second, the current threshold can mean the Crown makes charging decisions based on what will attract the protection conferred by ss 108–109 rather than an assessment of what is most appropriate on the facts. The Law Commission was directed to the case of R v Roil where the complainant was an undercover officer.875 Originally, the Crown had laid a charge of injuring with intent to injure; subsequently the Crown laid the more serious charge of wounding with intent to injure for the express purpose of allowing the officer to avail himself of the anonymity protection in s 13A of the Evidence Act 1908 (now contained in ss 108–109 of the Act).

11.90The regime by which undercover officers may give evidence anonymously is significantly different to the regime that applies to other witnesses. A key difference is that the anonymity provisions apply to undercover officers automatically on the Police Commissioner issuing a certificate and do not require a court order. Other significant differences include:

a court cannot appoint independent counsel to assist it to safeguard the rights of the defendant;

the absence of an explicit statement that a certificate should only be issued in “exceptional circumstances”; and

no requirement to demonstrate that revealing the protected person’s identity would put the safety of that person at risk.

11.91A judge may grant leave for questioning or evidence to be given relating to the identity of the undercover officer on application by any party. This leave may only be granted if the judge is satisfied that: (i) there is some evidence that could call into question the credibility of the officer; (ii) it is in the interests of justice that the defendant be able to properly test the credibility of the officer; and (iii) it would be impracticable for the defendant to test this credibility without knowing the true name or address of the witness.

11.92As a matter of practice, it is highly unlikely that the defence will be in a position to make an application for leave. Although the defence will have a copy of the certificate filed by the Police Commissioner detailing whether the officer has previously been convicted of an offence or found guilty of a breach of a police code of conduct, it is difficult to see how the defence will be able to gather much, if any, information as to the officer’s credibility without knowing his or her identity. Further, as provided above, the court is not able to appoint independent counsel to make such inquiries on its behalf.

11.93Undercover officers perform an important function in the investigation and detection of serious offending. The nature of their work is such that, when giving evidence, they can be required to betray relationships formed during undercover operations. This can expose these officers to a level of retribution that may not accrue to, for instance, an innocent bystander giving evidence. Revealing their identity can also have a detrimental effect on their continuing as undercover officers and may deter other officers from undertaking undercover work. These considerations justify undercover officers being subject to the special procedure set out in ss 108–109, rather than the general anonymity provisions in ss 110–119. The requirement for a certificate from the Police Commissioner outlining credibility issues provides a safeguard against the abuse of these provisions.

11.94However, the very fact that there is a special procedure for undercover officers that is subject to fewer safeguards requires careful circumspection as to the offences for which that procedure is available. Without evidence demonstrating that cases are regularly falling over or that the Crown is not proceeding with cases because of undercover officers declining to give evidence, there appears to be little justification for extending the protection afforded by ss 108–109.

11.95The concern that the current threshold may mean the prosecution is laying more serious charges specifically to engage the protection of ss 108–109 is an unconvincing reason to lower the threshold. The existence of a threshold enables tactical decisions to be made no matter where the threshold is set. In any event, the appropriateness of charges laid is a general matter that should continue to be dealt with by the Prosecution Guidelines876 and the court process itself,877 rather than through individual provisions relating to evidence.

Witness anonymity provisions

(1) This section and section 111 apply if a person is charged with an offence and is to be proceeded against by indictment.

(2) At any time after the person is charged, the prosecution or the defendant may apply to a Judge for an order—

(a) excusing the applicant from disclosing to the other party prior to the standard committal or the committal hearing (if required) the name, address, and occupation of any witness, and (except with leave of the Judge) any other particulars likely to lead to the witness’s identification; and(b) excusing the witness from stating for the purposes of or at the standard committal or committal hearing (if required) his or her name, address, and occupation, and (except with leave of the Judge) any other particulars likely to lead to the witness’s identification.

(3) The Judge must hear and determine the application in chambers, and—

(a) the Judge must give each party an opportunity to be heard on the application; and(b) neither the party supporting the application nor the witness need disclose any information that might disclose the witness’s identity to any person (other than the Judge) before the application is dealt with.

(4) The Judge may make the order if he or she believes on reasonable grounds that—

(a) the safety of the witness or of any other person is likely to be endangered, or there is likely to be serious damage to property, if the witness’s identity is disclosed before the trial; and(b) withholding the witness’s identity until the trial would not be contrary to the interests of justice.

(5) Without limiting subsection (4), in considering the application, the Judge must have regard to—

(a) the general right of a defendant to know the identity of witnesses; and(b) the principle that witness anonymity orders are justified only in exceptional circumstances; and(c) the gravity of the offence; and(d) the importance of the witness’s evidence to the case of the party who wishes to call the witness; and(e) whether it is practical for the witness to be protected prior to the trial by any other means; and(f) whether there is other evidence that corroborates the witness’s evidence.

(6) A pre-trial witness anonymity order may be made by—

(a) a District Court Judge who holds a warrant under the District Courts Act 1947 to conduct trials on indictment:(b) if the preliminary hearing is held in a Youth Court, a Judge referred to in section 274(2)(a) of the Children, Young Persons, and Their Families Act 1989:(c) a High Court Judge.

112 Witness anonymity order for purpose of High Court trial

(1) This section and section 113 apply if a person is charged with an indictable offence and is committed to—

(a) the High Court for trial; or(b) a District Court for trial and is the subject of an application under section 28J of the District Courts Act 1947 to transfer the proceeding to the High Court.

(2) At any time after the person is committed for trial, the prosecution or the accused may apply to a High Court Judge for a witness anonymity order under this section.(3) The Judge must hear and determine the application in chambers, and—

(a) the Judge must give each party an opportunity to be heard on the application; and(b) neither the party supporting the application nor the witness need disclose any information that might disclose the witness’s identity to any person (other than the Judge) before the application is dealt with.

(4) The Judge may make a witness anonymity order if satisfied that—

(a) the safety of the witness or of any other person is likely to be endangered, or there is likely to be serious damage to property, if the witness’s identity is disclosed; and(b) either—

(i) there is no reason to believe that the witness has a motive or tendency to be dishonest, having regard (where applicable) to the witness’s previous convictions or the witness’s relationship with the accused or any associates of the accused; or(ii) the witness’s credibility can be tested properly without disclosure of the witness’s identity; and

(c) the making of the order would not deprive the accused of a fair trial.

(5) Without limiting subsection (4), in considering the application, the Judge must have regard to—

(a) the general right of a defendant to know the identity of witnesses; and(b) the principle that witness anonymity orders are justified only in exceptional circumstances; and(c) the gravity of the offence; and(d) the importance of the witness’s evidence to the case of the party who wishes to call the witness; and(e) whether it is practical for the witness to be protected by any means other than an anonymity order; and(f) whether there is other evidence that corroborates the witness’s evidence.

11.97As with ss 109 and 110, the Evidence Amendment Act 2011 will amend these provisions. The majority of the amendments are merely consequential to the criminal procedure amendments contained in the Criminal Procedure (Reform and Modernisation) Bill, from which the Evidence Amendment Act 2011 was divided.878

11.98 Section 4 of the Evidence (Witness Anonymity) Amendment Act 1997 required the Ministry of Justice to review the operation of the new ss 13B–13J as soon as practicable after 3 years after its commencement. This report was completed in March 2002 and tabled in Parliament on 4 June 2002. The review stated that “The Ministry of Justice considers that the witness anonymity provisions appear to be working effectively and no legislative amendment to any of sections 13B to 13J of the Evidence Act 1908 is required”.879

11.99Our review of the case law likewise indicates that the witness anonymity provisions continue to work effectively. Their use appears to be confined to a small number of cases in which safety is a legitimate concern, and courts are carefully analysing the statutory requirements to ensure the defendant is not deprived of a fair trial. The practice by which the Solicitor-General must approve every application likewise places a check on overzealous use.880 Although the Ministry of Justice has pointed out some technical and procedural areas to be looked at (discussed below), no substantive concerns about these provisions were raised by the Ministry or any other submitter.

Right of appeal

11.100The provisions for making pre-trial and trial witness anonymity orders are similar, but have some differences. One difference is that there is a right to appeal a decision to make or not make a trial witness anonymity order under s 112, but not a pre-trial order under s 110.881 Although a party may seek judicial review of the decision under s 110, it seems desirable to provide for a full appeal right, given the significant implications of a pre-trial order. For instance, a witness may refuse to testify where witness anonymity is not granted, resulting in the Crown not proceeding with the prosecution.

11.101A member of the advisory group raised the issue of appeal rights in the context of the inter-relationship between the Evidence Act and the Criminal Procedure Act 2011. Unfortunately, we have not had the opportunity to consider this matter in detail since it was raised with us. However, it is a matter that may merit further consideration elsewhere.

R33 We recommend amending s 379A of the Crimes Act 1961 to provide an appeal right from a decision regarding a pre-trial witness anonymity order under s 110.

Ancillary orders

11.102In R v Kelly Randerson J raised the issue of whether the ancillary orders available under s 13G of the Evidence Act 1908 (now s 106 of the Evidence Act 2006) could be used where the defendant already knew the name of the witness.882 Section 116 relevantly provides:

116 Judge may make orders and give directions to preserve anonymity of witness

(1) A Judge who makes an order under section 110 or 112 may, for the purposes of any committal hearing or the trial (as the case may be), also make any orders and give any directions that the Judge considers necessary to preserve the anonymity of the witness, including (without limitation) 1 or more of the following directions:

(a) that the court be cleared of members of the public:(b) that the witness be screened from the defendant:(c) that the witness give evidence by closed-circuit television or by video link.

(2) In considering whether to give directions concerning the mode in which the witness is to give his or her evidence at any committal hearing or the trial, the Judge must have regard to the need to protect the witness while at the same time ensuring a fair hearing for the defendant.(3) This section does not limit—

(a) section 206 of the Summary Proceedings Act 1957 (which confers power to deal with contempt of court); or(b) section 197 of the Criminal Procedure Act 2011 (which confers power to clear the court); or(c) any power of the court to direct that evidence be given, or to permit evidence to be given, by a particular mode.

[emphasis added]

11.103The courts have recognised that an order may be made in less extensive terms than that provided for in the legislation. For instance, a court may make an order protecting the address and occupation of the witness where the defendant already knows the witness’s name.883 In this situation, it is not clear whether the ancillary powers in s 116 are available as the defendant’s anonymity has already been lost. However, there may be situations where such powers are desirable to otherwise protect the safety of the witness, even if their identity is already known to the defendant. As Randerson J states in R v Kelly:884

It may be implicit that the orders contemplated by s 13G(1) may be made both to preserve anonymity and to ensure the witness is protected from harm but the legislature could consider amending s 13G to put the matter beyond doubt.

11.104Randerson J declined to make a definitive ruling in this case by relying on the inherent jurisdiction of the court to allow evidence to be given in an alternative way. The Ministry of Justice, in its review, noted Randerson J’s comments.885 However, on the basis that he had no difficulty using his inherent jurisdiction to make the desired orders, it recommended no change.

11.105In addition to the ancillary orders in s 116, the Act provides for alternative ways of giving evidence in s 105. These include through screening or video recordings. A direction as to an alternative mode of giving evidence may be made on the judge’s own initiative or on the application of a party. This can be made on the grounds of, among other things, the trauma suffered by the witness (s 103(3)(c)) and the witness’s fear of intimidation (s 103(3)(d)). In making this determination, the judge must have regard to fair trial considerations and the need to minimise the witness’s stress.886

11.106Section 116 of the Act explicitly provides that the section does not limit the power of any court to direct that evidence “be given, or to permit evidence to be given, by a particular mode” (subs (3)(c)). The ability to make alternative orders in order to preserve witness’s safety is therefore adequately provided for in the Act.

877See, for example, s 345(5) and (6) of the Crimes Act 1961 which allows the court to quash a count that is not founded on the evidence.

878The amendments relating to the new categorisation of offences in the Criminal Procedure Act 2011 will change the threshold for which witness anonymity orders are available. Currently, the threshold is an offence laid indictably (pre-trial) or an indictable offence (at trial). The new threshold when the Evidence Amendment Act 2011 comes into force will be a category 3 or 4 offence, effectively an offence punishable by 2 years’ imprisonment or more.

879Ministry of Justice Report to the Minister of Justice under section 4 of the Evidence (Witness Anonymity) Amendment Act 1997 (March 2002) at 1.